Between Rule of Law, Quest for a Better Liberia and the Code of Conduct

On the 31st of March 2014 at 5 p.m. on the dot, a landmark legislation was signed in to law by President Ellen Johnson Sirleaf. With this stroke of her pen, Mrs. Sirleaf signed into law the Act of the Legislature Prescribing a National Code of Conduct for all Public Officials and Employees of the Government of Liberia. The House of Representatives had previously passed the Bill into law on August 22, 2013 at 1:43 p.m. after little over a year in “Committee Room”. The Senate for its part started its deliberations in “Committee Room” on September 6, 2013 at 2:07 p.m. and concurred with the House on March 6, 2014 at 12:12 p.m. President Sirleaf’s signing of the law completed a process which technically commenced in Liberia in the second quarter of 1979 after the well-heralded Rice Demonstrations of April 14 that year when the Brownell Commission proposed the setting up of a code of conduct to govern the actions of government officials and workers. It was consistent with this proposal that the General Principles of National Policy was included as Chapter Two of the Constitution of 1984. Specifically subsection C of Article 5 states that “The Republic shall: take steps, by appropriate legislation and executive orders, to eliminate sectionalism and tribalism, and such abuses of power as the misuse of government resources, nepotism and all other corrupt practices.”More than 30 Years Late but Better Late The passage of the Code of Conduct and its signing by the President finally concluded a process, which by the Constitution’s own language should have been concluded 30 years ago by the first legislature which was ushered in by the current Constitution in January 1986. For whatever reason the legislature at the time, which was hardly independent and largely composed of yes men and women failed to give life to a constitutional clause which was then and still is extremely important to the growth and development of Liberia. Since the demise of the 1986 legislature and the country’s government structure in 1990, numerous transitional governments have come and gone and two democratically elected governments have also failed to institute the constitutional mandate of enacting a code of conduct. It took a third constitutional post-war government with a president who is technically termed out to decide to finally fulfill one of the key “General Principles of National Policy” laid out in a document that they all swear before God and the nation to protect and defend. In spite of the long time it has taken to get to this point, it is better late than never for the Liberian people and government to start doing the right things in the country.The Push Back From Some Elements Before the ink could dry on the landmark piece of legislation however, there was instant push back from elements of the government who consider it an impediment for them to use their government offices to make a run for President in 2017. Elements loyal to Dr. J. Mills Jones, who is the Chairman of the Board of Governors of the Central Bank of Liberia, took a case to the Supreme Court claiming that the Code of Conduct’s provisions requiring officials to resign their appointed positions two or three years before any election they intend to stand are unconstitutional. Part V (Political Participation) of the Code of Conduct lay down rules and guidelines for certain government officials participating in political activities. Section 5.1 a) and b) put restrictions on the occupants of certain govern offices participating in elections while serving in their appointed offices. While “Section a” requires all appointed officials including Ministers, Deputy Ministers, Director-Generals, Managing Directors, and Superintendents to resign within two years of any elections they intend to contests, “Section b” imposes a 3-year resignation deadline on all other appointed officials who hold a tenured position. The case of Dr. Jones’ supporters did not go far with the Supreme Court. Dr. Jones thus decided not to resign his job although the law required that he left his appointment three years prior to the 2017 elections. That meant he should have resigned in October 2014. The information out and about in Liberia is that Dr. Jones intends to challenge his possible denial from participation in the 2017 presidential election on grounds that the relevant sections of the Code of Conduct are unconstitutional. Many people in Liberia seem to think that simply stating that a law is unconstitutional makes it unconstitutional. They do not seem to make a distinction between the concept of a bad law and an unconstitutional law or practice.Bad Law not Necessarily Unconstitutional In 1947, in the case Harris vs Harris ([1947] LRSC 13; 9 LLR, 344, 349) Mr. Justice Russell in his opinion on behalf of the Supreme Court stated that “...Courts are not concerned with whether or not legislation is wise or unwise, oppressive or democratic; it is the special function of the courts to interpret the law. Any legislation considered pernicious, unwise, or oppressive may be remedied only by the people who, where the legislators refused to change the law, may change their representatives in the legislature from time to time until such repugnant legislation is repealed.” People in Liberia may think that Part V (Political Participation) of the Code of Conduct may be unconstitutional. In fact some may think that the entire Code is unconstitutional, but having that thought itself does not make the law or portions of it unconstitutional. In order for a law or portions of it to be unconstitutional, that law or the applicable portion has to expressly run contrary to specific provisions of the Constitution in such a way that they would conflict with the operation of the constitutional provision. It is difficult to see which direct article (s) of the Constitution the Code of Conduct runs contrary to or one that it clearly violates. The Code may well be a bad law, but as Mr. Justice Russell famously said 68 years ago, deciding the issue of a bad law is not the work of the Court. If the Code of Conduct is a bad law, Dr. Jones and his new political party should now work towards getting it repealed by the very legislature that passed it. If the legislature fails to repeal it, any Liberian who thinks it is bad should now make it their goal to change the members of the Legislature to people who would be more predisposed to changing the “bad law”.

The Code as a Baby Step for a Better LiberiaRecently, Mr. Augustine Ngafuan resigned his position as Minister of Foreign Affairs squarely because he intends not to be “inactive”, as he put it, in the 2017 elections. Mr. Ngafuan’s action is laudable as he decided to be law abiding and not run the risk of starting an argument which will only make him appear like someone who wants to hold on to his government position in order to gain some kind of advantage at the 2017 polls. Mr. Ngafuan could have decided to follow the lead of Dr. Jones by not resigning and hoping that the Code will be declared unconstitutional by the Supreme Court as the result of a legal challenge in 2017, but instead he has perhaps taken the advice that it would be an illogical legal fight. Liberia has had more than its fair share of mishaps when it comes to the proper running of the governance process for too long in the country’s history. The basic rules of decency which should characterize any properly functioning society have always being nonexistent in the country with expediency and compromise being the order of the day instead of the rule of and by law. There has to be a cut-off point for these transgressions of the laws of the land and the fundamental principle of rule of and by law. Liberians must all decide to ensure that there is the establishment of a strong culture of rule of law in the country. If the law makes it illegal for a former Liberian citizen to participate in elections in Liberia, that law should be respected and not ignored like it was in the Special Senatorial Elections of 2014 to allow President Sirleaf’s son Robert Sirleaf to contest for the senatorial seat of Montserrado. On the same premise, it was wrong to ignore the same law in 2005 to allow Mr. George Weah and every other former Liberian to contest the presidential election then and all other elections since. If Liberians truly want to have a better Liberia and fully democratic country which works for all its citizens regardless of their religious, ethnic and political affiliations, strict adherence to the rule of law is the only route available. Giving full life to the Code of Conduct may be the first serious step in achieving the better Liberia aspiration of many of the country’s people.